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Entrapment is when a police officer induces a person to commit a crime they wouldn’t have otherwise committed, or provides them with an opportunity to commit a crime that they would not ordinarily have had. Entrapment can be used as a criminal defence in the US, but there is currently no legal defence of entrapment in Australia.

How does entrapment work?

Entrapment takes place when police officers, generally working undercover, encourage a person to commit an offence and then arrest them and bring charges against them for committing the offence.

The legal defence of entrapment in the US works by allowing offenders who have been charged using evidence obtained by undercover police officers to defend themselves if they can show that they would not otherwise have committed the offence, or that the crime was encouraged in such a way that it created a risk that a person who wasn’t otherwise inclined to commit it, would.

When deciding whether or not entrapment can be used as a defence, the situation as a whole, the alleged offender’s previous criminal history, and whether they have committed similar crimes in the past, are all factors that are taken into account.

What are the problems with evidence obtained this way?

Although this type of police work may be useful to catch offenders, it runs the risk of inciting someone to commit a crime that they would not have otherwise committed, and therefore can be seen as unfair and unjust. This type of undercover technique is commonly used in drug matters, where a police officer may set up a drug deal which then leads to the offender being arrested and potentially imprisoned.

In some cases, when they are trying to set up a situation to catch an offender, police officers may participate in illegal activity themselves. One case where this happened involved the Australian Federal Police (AFP), which allowed a known heroin importer to enter the country with 140.4 grams of heroin on their person so they could later arrest the person the drugs were delivered to. The AFP committed an offence against the Customs Act by doing so, and the offender’s conviction was quashed. As a result, the law was later changed to allow authorities to engage in “controlled operations” to obtain evidence.

Entrapment raises a number of legal concerns around the ends justifying the means, and whether it is legally acceptable for police to participate in criminal activity as a way of preventing more widespread crime. There are also ethical concerns about whether it is acceptable for police to ‘test’ the integrity of the public, or whether that is unfair and could potentially lead to a police state.

What does the law currently say about entrapment?

Although there is no legal defence of entrapment in Australia at the moment, the courts are encouraged to use discretion when determining whether an alleged offender would have committed an offence if they weren’t encouraged to. This can in some situations lead to a reduction in sentence.

Currently judges and juries are encouraged to use common sense when deciding whether someone would have committed a crime without being induced by the police. They are also encouraged to disregard evidence that was obtained by the police acting illegally.

When deciding whether or not an alleged offender would have reasonably committed an offence without the interference of police officers, the court will often look at their criminal history and circumstances, and whether the police had reason to suspect they were involved in criminal activity before they became involved.

If entrapment was introduced as a defence in Australia it would provide a more consistent framework for alleged offenders to defend themselves in situations where they had been unfairly encouraged by police. Instead of potentially receiving a lesser sentence, defendants would have the potential to be found not guilty and avoid a criminal conviction altogether.